Editors' Note: Guest blogger Tobias Barrington Wolff is Professor of Law at the University of Pennsylvania, the Jesse Climenko Visiting Professor of Law at Harvard, a civil rights lawyer, and the former LGBT policy advisor to presidential candidate Barack Obama.
The re-introduction of ENDA promises to bring with it a renewed discussion about the importance of federal statutory protections for gender identity and expression. In the past, much of that discussion has focused on our trans brothers and sisters. And indeed anti-trans discrimination ought to be enough by itself -- more than enough -- to justify including gender identity and expression within ENDA.
But there is a danger of drawing artificial divisions within our community when we assume that protection against discrimination based upon gender identity or expression is exclusively about trans people. That has never been the case. Those protections are designed to safeguard all of us against being punished because we somehow fail to conform to another persons's expectations about gender.
In the hope of arming people with information to help them make that important case, I'd like to point out a decision that was handed down by the U.S. Court of Appeals for the Third Circuit [PDF] the other week, Prowel v. Wise Business Forms, concerning the harassment and discrimination suffered by a man named Brian Prowel. Prowel was fired from the factory where he had worked for 13 years. He is, as he describes himself, an effeminate gay man. Throughout much of his time at the factory, he was subjected to horrible mistreatment.
As so often happens, the mistreatment focused both on the fact that Prowel is gay and on the way in which he presents and expresses his gender. As Prowel explains in his own words, he took more care with how he dressed than his male co-workers, drank gin and tonics instead of beer, and generally did not conform to the expectations of his co- workers about how a "man" acts.
The abuse and harassment based on his sexual orientation was bound up closely with the abuse and harassment because of his gender expression -- they called him "princess" and "rosebud" at the same time that they called him "faggot."
Under current federal law, employees have protection against discrimination based upon sex or gender. There is a Supreme Court precedent making it clear that gender discrimination includes discrimination based on a failure to conform to gender stereotypes. Nonetheless, lower federal courts have been inconsistent in their willingness to recognize that principle.
In one notorious case, for example, a woman was fired from a casino job because of her refusal to wear make-up and was then denied relief for discrimination based upon gender stereotypes, despite the fact that men in the casino with her same job were not required to apply foundation and rouge every morning.
Federal courts have been even more inconsistent in their willingness to recognize that anti-trans discrimination constitutes a form of gender discrimination, with some courts rejecting the claim altogether and others creating convoluted rules for when anti-trans discrimination counts as gender discrimination. Thus, people who are transgender or gender non-conforming have received inadequate protection from current federal law, if any.
In this respect, the Third Circuit's decision in Prowel v. Wise Business Forms is a good ruling. The court recognizes that if Prowel was harassed and fired because he does not "act like a man" in the eyes of his co-workers, then he is entitled to relief. But the court also holds -- as it must, under controlling precedent -- that Prowel cannot recover for discrimination based on the fact that he is gay.
Thus, when Prowel goes before the jury, he will need to shoulder the considerable burden of proving that at least some of the abuse he suffered was because of his gender expression and not because he was gay. (Think about the times that you have experienced or witnessed this kind of harassment and abuse and ask yourself how you would go about making that case.)
If the company can convince a jury that, no no, we tormented and fired this man because he's gay, not because he's a "princess" and a "rosebud," then they will escape liability. This absurd double-bind that Brian Prowel faces should make crystal clear the importance -- for all of us -- of including protection for gender identity and expression within ENDA.
Suppose that Congress were to enact a non-inclusive ENDA, one that covers only sexual orientation. Then the bind that Brian Prowel faces would simply be reversed. Employers and co-workers would say, "No no, we tormented and fired this man because he's a 'princess' and a 'rosebud' -- because of his gender expression -- not because he's gay." Sometimes that ploy will work, and a victim of antigay discrimination will lose altogether.
Indeed, this ploy will give hostile juries an additional excuse to deny recovery, if that's what they want to do. And even where the ploy does not work, it will make it more difficult and expensive for many plaintiffs to recover, because they will often have to go in front of a jury and attempt to prove that their employers were motivated by antigay bias and not by a hatred of their mannerisms or other modes of gender expression.
(As an important side note, this opinion by the Third Circuit also contains an unfortunate ruling on a claim of religious discrimination -- namely, that it doesn't constitute discrimination based on religion if your employer fires you because of his religious beliefs -- in this case, about homosexuality -- but only if your employer fires you because of your religious beliefs. It is a very bad ruling in an otherwise good opinion.)
As we work toward the enactment of a fully inclusive ENDA -- a goal that I believe we can accomplish with this Congress -- let's all prepare ourselves to educate the media, the politicians and the public about the importance of these protections. Again, protecting against anti-trans discrimination ought to be reason enough -- more than enough -- to enact a fully inclusive ENDA. But these protections are not just for our trans brothers and sisters.
They are for all of us.